Plan-it Law

Predetermination - on its way out

In an announcement on DCLG's website today (click here for link), the Local Government minister Andrew Stunnell makes it clear that the Decentralisation and Localism bill will scrap local authority standards committees and also the concept of "predetermination" which restricts the ability of members, particularly of planning committees, to take part in decision making on applications where they have previously expressed a clear view.

This will come as a welcome move for many planning committee members who understandably have felt constrained either in the way they respond to local concerns before committee - or in whether they can attend committee and vote.

However, it will remain important for members to remain open minded in relation to the merits of any particular application so that they avoid coming to a conclusion before a decision falls to be made. It would be helpful if the position were clarified in relation to members meeting with applicants/objectors and attending meetings (outside of the Council) where the relevant issues are discussed - the rather old fashioned view that members should retain a state of purdah on this still appears to be commonplace and we should be moving to a position where there is a wide debate and opportunity for members to fully understand the issues. This will become even more important in the "localism" world.

I'd be interested in readers thoughts on this.

New model s106 agreement

The Law Society has just published a new model s106 agreement.

This updates the previous version by referring to the new statutory tests and giving guidance on procurement issues. The agreement now also contains a dispute resolution clause.

There are two new alternative versions of example affordable housing clauses. The first provides a cascade mechanism involving tender processes and the option for the planning authority to call for a transfer of the relevant land itself. The second new example brings in Housing Corporation (or at least the successor thereto) standards and funding requirements.

Other than that, there are a few new model clauses dealing with further heads of obligation - such as travel plans and car clubs - but the agreement is nonetheless in a form which practitioners will (hopefully) have got used to using.

Garden Grabbing - update

Steve Quartermain, DCLG's chief planner, has written to local authority chief planning officers alerting them to the recent changes to PPS3. Click here for a link to the letter.

The penultimate paragraph is noteworthy and e mphasises the government's "localism" intentions; "Together these changes emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas"

June's Conundrum - Pickles, Localism, the Green Belt and Sustainability

This month's conundrum, from our e-bulletin, Future Perfect?, reads as follows....

On 27 May Eric Pickles wrote to all local authorities confirming the new Government's intention to abolish RSSs, and advising that, with immediate effect, this was to be considered as a material consideration for planning applications. He suggested that regional figures for housing supply were now irrelevant and that local authorities were free to set local targets.

Our conundrum was going to be "what on earth does that mean for core strategies that are being consulted or examined on now?" However, we now have the benefit of the guidance to inspectors, which sets out what they should do depending on what stage of the examination process they have reached and have also been told that a full announcement will be made on 22 June. We look forward to hearing in more detail quite how the government will action their intentions.

In the meantime, perhaps the real conundrum is that even if there are no RSS targets, there is every chance that the planning authority will agree that some new housing is needed, but with an eye on the importance of "localism", where are these new homes to go? Local authorities will be reluctant to give up their green belts and that does not sit happily with the fact that most sustainable sites are on the edges of towns and cities ... ie, in the green belt. Is there a real conflict between localism, housing needs, climate change and sustainability?

Material considerations - healthy eating

There has been a very interesting case which confirms the materiality of wellbeing/public health issues in development management decisions. It is the case of R (oao Copeland) v Tower Hamlets LBC, a case decided in the Admin Court on 11 June.

Here there was an application for a hot food takeaway in close proximity to a secondary school. C objected to the application since it worked against the school's healthy eating programme. The planning officer advised, however, that this was not a material consideration. Planning permission was granted, C brought an action in Judicial Review and succeeded in having the permission quashed.

The Court found that social objectives like healthy eating could be material considerations for planning determinations so that the planning officer had fallen into error in the advice given to members on this point.

There was also some discussion as to whether the decision would have been the same even if the advice had been correct (which might suggest the Court would not exercise its discretion to quash). On this point the Court found that it was not enough to show that the decision maker probably would have made the same decision - the Court would need to be satisfied that the decision would  inevitably have been the same. In this case, it was not put any higher than the decision might have been the same which was insufficient.

Flying the flag for England?

For those patriots amongst us, it would seem fitting to fly the flag of the nation whose football team you will be supporting during the World Cup.  However, before you do so, spare a thought for the Town and Country Planning (Control of Advertisements) Regulations 2007.  Flying a national flag from our properties is excluded from the need for consent by the Regulations so we're free to do so.  However, if we wish to fly a slightly embellished version of the national flag (e.g. the St. George's Cross with the "three lions" logo or the word "England" upon it) then the Regulations require that express consent is obtained.  

Therefore, technically speaking, it would seem that many fans may be flying these 'embellished' national flags unlawfully - unless they have first applied for express consent from their LPA!

Changes to PPS3

Two important anticipated announcements from Greg Clark at DCLG have now emerged. Firstly, "garden grabbing" is to be thwarted through the reclassification of domestic gardens so that they are no longer "previously developed land" (PDL or brownfield land). Secondly, and also with immediate effect, the minimum housing densities in PPS3 are abolished.

Although on the one hand it is good to see the new government marching forward with its plans, some points sprang immediately to mind;

1 most domestic gardens will be within the development framework or envelope of the particular community anyway so that their classification as PDL may only be of marginal significance. In any event, PPS3 makes clear that "there is no presumption that land that is previously developed is necessarily suitable for housing..nor that the whole of the curtilage should be developed."

2 One of the key messages of PPS3 is that we must make efficient use of land. This is an important point and one which supports the protection of the countryside.  Many will see the removal of density targets as a good thing and a clear indication that we will move back to family homes with decent gardens and plenty of space to park all the family cars. Others will see it as another question mark over whether we can achieve the growth in housing numbers which we need whilst balancing the interests of the environment.

It is to be hoped that the government brings forward the whole of its proposals for planning, including housing, soon - rather than the drip feed we are currently seeing. We need to see how it all hangs together.

Abolition of RSS - are we in a pickle?

I cannot recall the last time anything in planning caused such an immediate stir as the recent letter from Mr Pickles to local planning authorities regarding the abolition of RSS (click here for link to the PINS website where you can view the letter).

It is not so much the abolition of RSS which is causing the immediate concerns - this has been trailed for some time - but rather the second paragraph which expects LPAs to regard the letter as a material consideration in current decisions.

From what I am hearing, local authorities and Inspectors are unclear what this actually means in practice. Say there is a core strategy already adopted (and therefore part of the development plan) but that core strategy derives from RSS and takes forward housing figures from RSS - what happens now? Does Mr Pickles letter mean the authority can turn its back on its own core strategy? what if a core strategy is at examination in public - what assumptions are to be made on housing numbers given the position on RSS?

It is to be hoped that the coalition government brings some clarity on this as soon as possible.

THE STATE OF THE PLANNING SYSTEM – WHERE ARE WE NOW? WHERE ARE WE GOING?

I have the privilege of a sabbatical this year, now in fact.  Which seems to me to be a good time to take stock of the existing system as the Coalition Government is proposing major changes.  I’ve written a short article about it which you can read here. Well actually it’s a few pages so I thought a summary might help.  But please do read the full article.

It seems to me that the existing system has some serious operational problems.  The Local Development Framework system was a commendable effort to get people involved but from the beginning was a cumbersome beast, full of acronyms and initials, with involved procedures and rigid front end loading.  The development management system (as we now call development control) is better – it has the advantage of dealing with actual applications for permission, but is weighed down with unnecessary procedures.  The guidance on “validation” of applications has created more hurdles than ever, with long lists of documents to accompany an application being generated by planning authorities.  I still fail to see why we need to have design and access statements, even as recently reformed.  But Killian Pretty is helping to improve development management. 

Then we have the Planning Act 2008, overlaying the Infrastructure Planning Commission and the new way of permitting national infrastructure projects.  I am on record here for exampleas saying this suffers from a democratic deficit – the final decision, balancing the public good,  is taken by technocrats.

And we must not forget CIL.  The Regs came into effect on 6^th April this year.  But it’s got a lot of oddities, some of which I feel sure are mistakes.  And alongside it we see the codification of the policy tests for s.106 agreements.

So what does the Coalition propose?  Local decision making and abolition of RSSs, abolition of the IPC and introduction of democratic accountability to the permitting of major infrastructure, financial incentives to accept new development, a presumption in favour of development on non-designated land,  restrictions on the grounds of appeal and the creation of a third party right of appeal.  And the replacement of the tariff and scaling back of s.106.

Apart from the commitment to local decision making it’s difficult to find a principle or unifying thread in these major changes. 

I applaud the changes to the infrastructure permitting system.  But do we really think local authorities will volunteer to take the housing needed to deal with rising numbers of households?  Third party rights of appeal will simply gum up the system and be good for lawyers (in the short term).  Opponents of development already use judicial review.  And that is costly.  It also fails to understand that there is still a presumption in favour of development (albeit qualified).  A third party appeal right fails to understand the basis for the system.

The change to the grounds of appeal will make the development plan absolutely supreme, with no room for anything else.  Whilst in theory authorities will still be required to have regard to the plan and material considerations, with conformity with the plan forming the only ground of appeal why will they bother with other material considerations?

Then we have the tariff and CIL.  There are some real problems with the CIL Regs, some of which look like mistakes.  Our posts on the CIL category of www.plan-it-law.comdraw attention to some (not all).  For example the provisions designed to prevent double recovery can be circumvented with just a little ingenuity and care.  I suggest a better way in the main article (and I did so to DCLG/ODPM when Circular 5/05 was being drafted). I have two pleas for change on CIL and s.106 – that the straitjacket of s.12 Planning and Compensation Act 1991 be removed and for any change to be underpinned by a good understanding of the principles and law of the existing system.

In fact that is my plea for any reforms – get a good understanding of the current system first, and have a coherent set of principles underlying the changes which mesh with the existing system.

I am going to read the Uthwatt Report on sabbatical. Many people look at bit blank at this point, but it was the report, written during the Second World War, which led to the modern planning system.  I have never read it before but I am struck already by its terms of reference which included “To advise, as a matter of urgency, what steps should be taken now or before the end of the war to prevent the work of reconstruction thereafter being prejudiced.”

That was our last coalition government.  I’ll let you know what Uthwatt said when I am back in August.

David Brock

Abolition of RSS

The abolition of RSS will feature in the Decentralisation and Localism Bill but, meanwhile, Eric Pickles has written to all local planning authorities confirming the proposals for RSS and making it clear that this committment to abolish should now be regarded as a material consideration in any current application. The same letter appears on the PINS website (click here for the link).

So it is clearly intended that local planning authorities (and Inspectors) should feel able to disregard RSS in current determinations. Given that RSS will continue to be part of the development plan until abolished, and that local development plan documents might give effect to RSS in any event, it will be interesting to see which decisions come through which fly in the face of the development plan citing this letter as material.